Citation Nr: 1041811
Decision Date: 11/05/10 Archive Date: 11/12/10
DOCKET NO. 05-31 653 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for a lumbar spine
disability.
2. Entitlement to service connection for a right hip disability.
3. Entitlement to service connection for a right knee
disability.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The Veteran served in the Naval Reserve. Her periods of active
duty, active duty for training, and inactive duty training, have
not yet been verified.
This matter came before the Board of Veterans' Appeals (Board) on
appeal from an October 2004 rating decision of the Detroit,
Michigan, Regional Office (RO) which, in pertinent part,
established service connection for chronic left knee patellar
tendonitis, and denied service connection for a right knee
disorder, a right hip disorder, and a low back disorder. In
October 2006 and July 2009, the Board remanded the Veteran's
claims to the RO for additional development of the record.
REMAND
The Veteran asserts that service connection is warranted for a
lumbar spine disability, a right hip disability, and a right knee
disability, with all claims to include as secondary to her
service-connected left knee disability.
The Board notes that VA amended its regulation pertaining to
secondary service connection, effective from October 10, 2006.
See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310).
The new regulation appears to place additional evidentiary
burdens on claimants seeking service connection based on
aggravation; specifically, in terms of establishing a baseline
level of disability for the non-service-connected condition prior
to the aggravation. Because the new law appears more restrictive
than the old, and because the appellant's claim was pending when
the new provisions were promulgated, the Board will consider this
appeal under the law in effect prior to October 10, 2006. See,
e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new
regulations cannot be applied to pending claims if they have
impermissibly retroactive effects).
In July 2009, the Board remanded these claims. In part, the
Board directed that the National Personnel Record Center and/or
"the appropriate service entity" be contacted and requested to
verify the Veteran's complete periods of active duty, active duty
for training (ACDUTRA), and inactive duty training (INACDUTRA)
with the Naval Reserve, and to forward all available service
medical records associated with such duty for incorporation into
the record.
There is no indication that this has been done. In this regard,
in August 2010, the Appeals Management center (AMC) issued a
supplemental statement of the case which denied the claims,
stating that, "The evidence does not demonstrate that you have
active duty service." However, the basis for this conclusion is
not stated, and is unclear.
Under the circumstances, without knowing the periods of active
duty, ACDUTRA, and INACDUTRA, adjudication of the claims cannot
proceed. This information is necessary because in order for the
appellant to achieve "Veteran" status for the disabilities she
may allege were incurred during her service in the Naval Reserve
and be eligible for service connection for a disability claimed
during her inactive service, the record must establish that she
was disabled during active duty for training due to a disease or
injury incurred or aggravated in the line of duty; or she was
disabled from an injury incurred or aggravated during inactive
duty training. See 38 U.S.C.A. §§ 101(21), (24), 1110, 1131; 38
C.F.R. §§ 3.6(a), (c), 3.303, 3.307(a), 3.309(a) (2010); Mercado-
Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown,
7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App.
474, 478 (1991) (noting inter alia that presumptive periods do
not apply to periods of ACDUTRA or INACDUTRA).
The U.S. Court of Appeals for Veterans Claims (Court) has
indicated that a remand by the Board confers on a veteran, as a
matter of law, the right to compliance with the remand orders.
The Court further indicated that it constitutes error on the part
of the Board to fail to insure compliance. Stegall v. West, 11
Vet. App. 268 (1998).
Given the foregoing, a Remand is required in order to attempt to
determine the Veteran's periods of active duty, ACDUTRA, and
INACDUTRA.
In its July 2009 remand, the Board further directed that the
Veteran be afforded examinations of her lumbar spine, right hip,
and right knee, and that etiological opinions be obtained. The
Board stated, "Send the claims folder to the examiner for review
of pertinent documents therein. The examination report should
specifically state that such a review was conducted."
In March 2010, the Veteran was afforded VA joint and spine
examinations. The same examiner performed both examinations. At
the top of each report, he specifically indicated that the
Veteran's C-file had been reviewed. However, farther down he
indicated that the Veteran's private medical records, and service
medical records, had not been reviewed. In addition, the
examiner appears to have linked "lumbar spine strain," and
"right knee strain" to the Veteran's service, however, as
previously stated, the Veteran's periods of active duty, ACDUTRA
and INACDUTRA, have not yet been verified. In this regard,
although the Veteran is shown to have complained of low back pain
in February 2004, her service treatment reports do not currently
indicate that the Veteran sustained trauma to either her lumbar
spine, or to her right knee, and the VA examination reports note
that there were no injuries to the right knee, right hip, or
back. Furthermore, with regard to right knee "strain," VA
generally does not grant service connection for symptoms which
have not been associated with trauma or a disease process. See
e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)
("pain alone, without a diagnosed or identifiable underlying
malady or condition, does not in and of itself constitute a
disability for which service connection may be granted.");
dismissed in part and vacated in part on other grounds, Sanchez-
Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (lumbar
strain is one of the specifically listed exceptions to this
principle. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2010)).
It is therefore unclear whether or not she has a right knee
disability for VA purposes. See Gilpin v. West, 155 F.3d 1353
(Fed. Cir. 1998). Finally, although the Veteran was found to
have arthritis of the lumbar spine, the examiner failed to
provide opinions as to whether the Veteran's lumbar spine
arthritis was caused or aggravated by her service, or by her
service-connected left knee disability.
Given the foregoing, following making determinations of her
period(s) of active duty, active duty for training, and inactive
duty training, the Veteran should be afforded another
examination, to include obtaining etiological opinions.
The appellant is hereby notified that it is the appellant's
responsibility to report for the examination and to cooperate in
the development of the case, and that the consequences of failure
to report for a VA examination without good cause may include
denial of the claims. 38 C.F.R. §§ 3.158 and 3.655 (2010).
As a final matter, in its July 2009 remand, the Board further
directed that the Veteran's treatment reports from Dr. C.A.G. be
obtained. In a December 2009 duty to assist letter, the AMC
requested the Veteran to complete an authorization for release of
these records. There is no record that a completed authorization
was ever received. Under the circumstances, another attempt
should be made to secure an authorization for release of these
records.
Accordingly, the case is REMANDED for the following action:
1. Contact the National Personnel Record
Center and/or the appropriate service
entity, and request that they verify the
Veteran's complete period(s) of active
duty, active duty for training, and
inactive duty training, with the Naval
Reserve, and that they forward all
available service medical records
associated with such duty for incorporation
into the record.
2. Contact the Veteran and request that
she provide information as to all post-
service treatment of her claimed chronic
right knee, right hip, and low back
disabilities, including the names and
addresses of all health care providers.
Upon receipt of the requested information
and the appropriate releases, the RO should
contact Carlos A. Goody, M.D., and all
other identified health care providers, and
request that they forward copies of all
available clinical documentation pertaining
to treatment of the Veteran, not already of
record, for incorporation into the claims
file.
3. After, and only after, the development
outlined in the first two paragraphs of
this remand has been completed, schedule
the Veteran for a VA examination for
compensation purposes which is sufficiently
broad to accurately determine the current
nature and severity of the Veteran's
chronic right knee, right hip, and low back
disabilities, if any. The claims folder
and a copy of this REMAND should be
reviewed by the examiner, and the
examiner must annotate the examination
report that the claims file was in fact
made available for review in
conjunction with the examination. The
examiner should also be advised that
service connection is currently in effect
for chronic left knee patellar tendonitis.
The examiner should provide an opinion as
to the following questions:
a) Whether it is at least as likely as not
(i.e., a probability of 50 percent or
greater) that any identified chronic right
knee disability was caused by a verified
period of active duty, active duty for
training, or inactive duty training; or, if
not, whether a right knee disability was
caused by, or increased in severity beyond
its natural progression, due to her
service-connected chronic left knee
patellar tendonitis.
b) Whether it is at least as likely as not
(i.e., a probability of 50 percent or
greater) that any identified chronic right
hip disability was caused by a verified
period of active duty, active duty for
training, or inactive duty training; or, if
not, whether a right hip disability was
caused by, or increased in severity beyond
its natural progression, due to her
service-connected chronic left knee
patellar tendonitis.
c) Whether it is at least as likely as not
(i.e., a probability of 50 percent or
greater) that any identified chronic lumbar
spine disability was caused by a verified
period of active duty, active duty for
training, or inactive duty training; or, if
not, whether a lumbar spine disability was
caused by, or increased in severity beyond
its natural progression, due to her
service-connected chronic left knee
patellar tendonitis.
d) The examiner should be notified that
the term "at least as likely as not" does
not mean "within the realm of medical
possibility." Rather, it means that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of that conclusion as it is to find
against it.
e) If the examiner cannot express any of
the requested opinions, the examiner should
explain the reasons therefor.
4. Then readjudicate the issues of
entitlement to service connection for a
right knee disability, a right hip
disability, and a lumbar spine disability,
with express consideration of 38 C.F.R. §
3.310(a) (2010) and the United States Court
of Appeals for Veterans Claims' (Court)
holding in Allen v. Brown, 7 Vet. App. 439
(1995). If any of the benefits sought on
appeal remains denied, the Veteran should
be issued a supplemental statement of the
case (SSOC) which addresses all relevant
actions taken on the Veteran's claims for
benefits, to include a summary of the
evidence and applicable law and regulations
considered, since the issuance of the
statement of the case. The Veteran should
be given the opportunity to respond to the
SSOC.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs